Najmina Khatun vs State Of West Bengal & Ors.

Protik Prakash Banerjee, J.

India loves dynasties. So does the world. In her own small way, the writ petitioner in this case has tried to perpetuate a dynasty of service â€

unfortunately in a manner which is not permitted by law.

Since the facts of the case stand admitted and are apparent from the records, I have not called for affidavits.

The writ petitioner is the daughter in law of a man whose mother used to be an unapproved organizing staff of a Madrasah since August 29, 1985.

In her lifetime, service of this matriarch, whose name is Suko Bibi, was never approved or regularized. She made several representations and

ultimately instituted a petition under Article 226 of the Constitution of India which was registered as W.P. No.22023 (W) of 2007, that is to say, 22

years after she was allegedly appointed, seeking approval of her services. She did not proceed with it, the present writ petitioner says out of ill-health,

but admittedly she abandoned her claim to approval of her services, with the dismissal of the writ petition. The writ petitioner in the present case

claims that before death, Suko Bibi approached the respondent no. 3, with a request to appoint the present writ petitioner in her place and thus vacated

her office. The writ petitioner claims that Suko Bibi waived her right to approval of her service in favour of the writ petitioner. In support of her claim,

she cites the fact that the respondent no. 3 took a resolution on April 2, 2007to appoint the petitioner in the vacant and allegedly sanctioned post of the

Matron of the Respondent No.4 Madrasah. The petitioner claims to have assumed office on April 11, 2007 and to have been working there till date.

She has moved this court, now, complaining that neither her appointment has been approved nor she has received any remuneration for her services.

She has sought mandatory reliefs inter alia for approval of her service and for payment of salary and what she says is due to her.

Appearing on behalf of the State of West Bengal, the Learned Government Pleader, Mr. Joytosh Majumdar, has opposed this writ petition on the

following counts: -

a. Service under a Madrasah is not hereditary and unless there is a case made out for compassionate appointment, it does not devolve upon a member

of the family of an employee. Member of the family has been defined in the concerned rules relating to compassionate appointment, and the petitioner

does not fulfill the conditions. In addition, this was not a case of compassionate appointment within the meaning of law.

b. The services of Suko Bibi were never approved and the question cannot arise of her son’s daughter in law being appointed on compassionate

ground in her place and stead.

c. Whatever rights Suko Bibi had â€" which were at best in the nature of an expectation and not even legitimate â€" stood abandoned when

admittedly she did not proceed with her writ petition being WP No.22023 (W) of 2007. He relies upon the principles underlying Order 23 Rule 1(4) of

the Code of Civil Procedure read with Rule 53 of the Rules of this Court relating to applications under Article 226 of the Constitution of India in

support of this contention. Her services, admittedly, were never approved and the State of West Bengal and its officers and the public exchequer

could not be made liable for payment of salary to her or be responsible for the unapproved service it is claimed that she rendered before vacating

office. Therefore, there existed no right in her favour on the basis of which the petitioner could claim appointment in her place and stead.

d. If the unapproved alleged service of the writ petitioner from April 11, 2007, in an approved Madrasah/MSK is considered, by itself it can give no

right for approval of her service, since her appointment was illegal and not merely irregular. This, Mr. Majumdar submits, is because of the Guidelines

for Recruitment of Non-teaching Staff (Librarian, Clerk, Group â€" ‘D’ Staff) of Non-Govt. Aided Secondary Schools, Higher Secondary

Schools, Govt. Sponsored Schools, D.A. Getting Schools and all types of Aided Madrasahs Including Senior Madrasahs and Newly set up Educational

Institution at Secondary Level in West Bengal.

e. He refers to Direction 1(a) of these Guidelines, which he says are directions within the meaning of Rule 27 of the Rules for Management of

Recognized non-Government Madrasahs (Aided and Unaided), 2002, framed under Section 38 of the West Bengal Board of Madrasah Education Act,

1994, and submits that under this Direction, it is mandated that all appointments of Nonteaching Staff shall be made with the prior permission of the

District Inspector of Schools (S.E.) of the respective District against sanctioned post. He submits that the prior permission of the District Inspector

Schools (S.E.) was however not taken for the appointment of the petitioner.

f. Further, Directions 3 and 4 of the aforesaid guidelines lay down the procedure to be followed for appointment against a sanctioned post which have

also not been complied with for the appointment of the petitioner. The appointment of the petitioner is merely pursuant to the resolution of Respondent

No. 3 dated April 2, 2007.

g. He points out that the Madrasah in question already stood approved as on April 2, 2007. Therefore, the writ petitioner could not lay claim to the

same consideration as an organizing staff of an unapproved Madarasah which later became approved. Therefore, the writ petitioner claims approval

of her service, pursuant to an illegal appointment, by an approved service, and all the benefits she claims, are on the basis of such unapproved service

pursuant to an illegal appointment.

h. He reminds the court that Direction 2(c) of the aforesaid guidelines defines a ward as “the unemployed widow/ dependent unemployed Son/

dependent unemployed and unmarried daughter and dependent unemployed Husband in case of a Female Staff†and therefore the petitioner does not

qualify as a “wardâ€​ in terms of the said order to be appointed on the said post.

i. Thus, he submits that the appointment of the writ petitioner being itself illegal and in violation of the provisions of the rules and directions governing

recruitment at the relevant point of time, her entire claim is based on that which is legal and no mandamus can issue for enforcing that which is illegal.

She did not acquire any legal right by such illegal appointment and therefore the service which according to her resulted from such illegal appointment

cannot, in law, be approved nor any consequential benefits be granted to her for such service.

I find much force in the submissions of Mr. Majumdar and the reasons he has cited for those submissions could not be negated by Mr. Mostafa. It

is clear that the writ petitioner has no hereditary right to be appointed to the said madrasah, and that according to the Directions aforesaid, she is not

entitled to be considered as a “ward†of the said Suko Bibi and Suko Bibi had no approved service nor right to claim approval â€" after

abandoning her claim by abandoning her writ petition â€" on the basis of which the writ petitioner could have claimed. The writ petitioner herself was

clearly appointed illegally, in gross violation of the prevalent recruitment rules according to the Directions relied upon by Mr. Majumdar and therefore,

such an illegal appointment did not and does not give her any right to approval of her service. Therefore, neither the State of West Bengal nor the

public exchequer can be made liable for any payment to be made to her for the service she claims to have rendered since April 11, 2007.Thus, she is

neither entitled to approval of her service nor any salary or other benefits or dues from the State of West Bengal or the public exchequer.

However, I cannot ignore the fact that the respondent no. 4 Madrasah has not denied that she has been rendering service since April 11, 2007 and

that she was not doing so gratuitously, but on the basis of the representation that she was being appointed which is the effect of the resolution taken on

April 2, 2007 by the respondent no. 3, the managing committee of the madrasah. If nothing else, the respondents No.3 and 4, thus in effect, made a

representation on the basis of which the writ petitioner altered her position to her material prejudice and rendered service and is rendering service

since April 11, 2007. She says she has been paid nothing, not even salary for this period. Therefore, the respondents No.3 and 4 cannot evade the

responsibility for compensating her for the fruits of her labour.

Accordingly, while the writ petition fails in respect of the reliefs prayed for, and is dismissed for those reliefs, I dispose of the writ petition by

directing the respondent no. 3 managing committee to make payment of the arrears of salary of the writ petitioner from April 7, 2011 till the date of

this order and also current payments towards salary if the respondents no.3 and 4 continue to accept service from the writ petitioner, from the funds

of the respondent no. 4 Madrasah without making the respondent no. 1 and/or the exchequer of the State of West Bengal liable for it. Such arrears of

salary â€" as payable to other similar staff of the respondent no. 4 â€" shall be calculated and the sum in arrears released by the respondents no.3 and

4 to the writ petitioner, within a period of four months from the date of communication of the order and the current salary, if the services of the writ

petitioner are continued to be accepted by the respondents no.3 and 4, shall be released by the 5th day of each succeeding month, month by month.

The writ petition is disposed of on the above terms. There shall be no order as to costs.